Nazir Khan, Iftikhar Khan v. Merit Medical Systems, Inc.

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NAZIR KHAN, IFTIKHAR KHAN,
Plaintiffs-Appellants
v.
MERIT MEDICAL SYSTEMS, INC.,
Defendant-Appellee
______________________
2023-1054
______________________
Appeal from the United States District Court for the
District of Utah in No. 2:21-cv-00337-HCN, Judge Howard
C. Nielson, Jr.
______________________
ON MOTION
______________________
Before D YK, BRYSON, and P ROST , Circuit Judges.
P ER CURIAM .
O R D E R
Merit Medical Systems, Inc. moves to dismiss this ap-
peal for lack of jurisdiction. Appellants Nazir Khan and
Iftikhar Khan (collectively, “Khan”) oppose dismissal.
Merit Medical replies.
Case: 23-1054 Document: 22 Page: 1 Filed: 12/29/2022

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 2
Khan filed this action for patent infringement in the
United States District Court for the District of Utah. Merit
Medical counterclaimed for declaratory judgments of non-
infringement and invalidity, as well as interference with
economic relations. The magistrate judge filed a report and
recommendation agreeing with Merit Medical that sum-
mary judgment of non-infringement should be issued on
Khan’s claims. On September 27, 2022, the district court
entered an order “in favor of [Merit Medical] and against
[Khan] on all of [Khan’s] claims.” ECF No. 1-2 at 41. Khan
filed an appeal seeking review of that decision. Merit Med-
ical now moves to dismiss, noting that the district court has
not resolved Merit Medical’s claims and that the district
court has indicated that “[g]iven Defendant’s pending coun-
terclaims,” the “entry of judgment was premature.”
We agree with Merit Medical that this appeal is prem-
ature. Our jurisdiction generally extends only to a “final
decision of a district court,” 28 U.S.C. § 1295(a)(1), i.e., one
that “ends the litigation on the merits and leaves nothing
for the court to do but to execute the judgment,” Catlin v.
United States, 324 U.S. 229, 233 (1945). A grant of sum-
mary judgment that does not resolve all of Merit Medical’s
counterclaims fails to end the litigation on the merits and
is not a final judgment. See Nystrom v. TREX Co., 339 F.3d
1347, 1350 (Fed. Cir. 2003) (“If a case is not fully adjudi-
cated as to all claims for all parties . . . there is no ‘final
decision’ . . . and therefore no jurisdiction.” (citation omit-
ted)); Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d
1354, 1362 (Fed. Cir. 2003) (“A judgment that does not dis-
pose of pending counterclaims is not a final judgment.” (ci-
tation omitted)). Nor has Khan demonstrated that the
court’s order effectively denies him injunctive relief such
that he may appeal under 28 U.S.C. § 1292. See Carson v.
Am. Brands, Inc., 450 U.S. 79, 84 (1981).
We therefore grant the motion and dismiss the appeal
for lack of jurisdiction, subject to reinstatement under the
same docket number without the payment of an additional
Case: 23-1054 Document: 22 Page: 2 Filed: 12/29/2022

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KHAN v. MERIT MEDICAL SYSTEMS, INC. 3
filing fee if, within 60 days of this order, Khan appeals from
the entry of a final judgment on the entire case or obtains
a certification for appeal pursuant to Rule 54(b).
Accordingly,
I T I S O RDERED T HAT :
(1) The motion is granted to the extent that the appeal
is dismissed for lack of jurisdiction, subject to reinstate-
ment under the same docket number without the payment
of an additional filing fee if, within 60 days of this order,
Khan appeals from the entry of a final judgment or obtains
a certification for appeal pursuant to Rule 54(b).
(2) Each side shall bear its own costs.
December 29, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: December 29, 2022
Case: 23-1054 Document: 22 Page: 3 Filed: 12/29/2022

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